The Origins of Modern Gun Rights and the Antebellum South

Over at The Atlantic, Saul Cornell and Eric Ruben argue: “the idea that citizens have an unfettered constitutional right to carry weapons in public originates in the antebellum South, and its culture of violence and horror.”  Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and the author of A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.  Eric Ruben is a jurisprudence fellow at the Brennan Center for Justice at the New York University School of Law.

Here is a taste of their piece:

Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations. In the name of the Second Amendment, they are challenging the constitutionality of state and municipal “may issue” regulations that restrict the right to carry weapons in public to persons who can show a compelling need to be armed. A few courts are starting to take these challenges seriously. But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.

Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations. In the name of the Second Amendment, they are challenging the constitutionality of state and municipal “may issue” regulations that restrict the right to carry weapons in public to persons who can show a compelling need to be armed. A few courts are starting to take these challenges seriously. But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.

Public-carry advocates like to cite historical court opinions to support their constitutional vision, but those opinions are, to put it mildly, highly problematic. The supportive precedent they rely on comes from the antebellum South and represented less a national consensus than a regional exception rooted in the unique culture of slavery and honor. By focusing only on sympathetic precedent, and ignoring the national picture, gun-rights advocates find themselves venerating a moment at which slavery, honor, violence, and the public carrying of weapons were intertwined.

The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Henry Lumpkin in 1846. As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor. Perhaps, not by coincidence, Nunn was the first case in which a court struck down a gun law on the basis of the Second Amendment. The U.S. Supreme Court cited Nunn in District of Columbia v. Heller, its landmark 2008 decision holding, for the first time in over 200 years, that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. Why courts or gun-rights advocates think Lumpkin’s view of the right to bear arms provides a solid foundation for modern firearms jurisprudence is puzzling. Slavery, “honor,” and their associated violence spawned a unique weapons culture. One of its defining features was a permissive view of white citizens’ right to carry weapons in public.  

Read the rest here.

2 thoughts on “The Origins of Modern Gun Rights and the Antebellum South

  1. The Right to Bear Arms Is Not a Relic of the Slave-Owning South

    Read more at: http://www.nationalreview.com/article/424962/2nd-amendment-southern-slavery-atlantic-essay-response

    “By framing their critique in this way, Cornell and Ruben are presumably hoping the more casual among their readers will conclude that carry-rights advocates are selectively reading history — or, worse, that they are siding with its “bad guys.” As always, I would recommend that those readers refuse to fall for the ruse and instead see this essay for what it is: An attempt to undermine the idea that the Constitution protects the “bearing” as well as the “keeping” of arms, and to cast those who contend that it does as heirs not to the Founders but to the treacherous architects of secession and white supremacy.

    As should be obvious to anybody who understands the relevant legal history, these implications are false. Second Amendment advocates do not cite Nunn v. Georgia because it’s the case that best fits with our political preferences, because we endorse the subculture from which it came, or because we are violent or honor-driven or antediluvian of mind. We cite it because it is the only antebellum precedent available in this area, and because it is thus historically instructive. If one’s sole knowledge of this matter came from Cornell and Ruben’s piece, one could be forgiven for presuming that there are a host of contradictory precedents from which historians are able to choose, and that “gun nuts” have merely elected to pick the most favorable. This, I’m afraid, is simply not the case. As Cornell and Ruben concede themselves, “no similar record of court cases exists for the pre–Civil War North.” Of course defenders of the right to keep and bear arms point to the “Southern” example. It’s the only one that exists…”

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  2. Over at The Atlantic, Saul Cornell and Eric Ruben argue: “the idea that citizens have an unfettered constitutional right to carry weapons in public originates in the antebellum South, and its culture of violence and horror.”

    “The genetic fallacy (also known as the fallacy of origins or fallacy of virtue) is a fallacy of irrelevance where a conclusion is suggested based solely on someone's or something's history, origin, or source rather than its current meaning or context.”

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